Test For Relevant Evidence & General Admissibliity of Relevant Evidence
What is FRE 401?
FRE 401: Relevant Evidence Is: AMO
A: Any tendancy
M: More or less probable than without the evidence
O: Of consequence to determing the action
REMEMBER: Relevance Considerations
- Legal Theory: If the legal theory is rejected, evidence related to that legal theory is irrelevant (inadmissible under Rule 402)
- Opening the Door: What is irrelevant at one pont of the trial, may become relevant later
- Concessions DOES NOT EQUAL Concealment: Evidence is relevant even it it addresses a matter the opponent concedes
- Strict Liability: Defendant may be liable without proof of negligence or intent. The plaintiff generally does not need to prove:
- Fault
- Negligence
- Intent
- Knowlege
What is FRE 403?
FRE 403: Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons "Pistols Can Misfire During Wild Crossfires"
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of:
P: Undue Prejudice
C: Confusing the Issues
M: Misleading the Jury
D: Undue Delay
W: Wasting Time
C: Cumulative Evidence
What is FRE 404 Summarized?
FRE 404. Character Evidence; Other Crimes, Wrongs, or Acts
Character evidence is generally NOT admissible to prove that a person acted in confromity witht thac character on a particular occasison.
What is FRE 407?
FRE 407: Subsequent Remedial Measures
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measure is not admissible to prove:
- Negligence
- Culpable conduct
- A defect in a product or its design; or
- A need for a warning or instruction
But the court may admit this evidence for another purpose, such as impeachment or -- if disputed - proving ownership, control, or the feasibility of precautionary measures.
Martha is charged with defrauding a government contractor. The prosecutor has a character witness who will testify that he has worked with Martha for seven years and knows her reputation. He is willing to testify that Martha’s reputation at work is that she is a very dishonest person. Under what conditions will the prosecutor’s witness be allowed to testify?
A. Only after Martha testifies in her own defense.
B. Only after Martha calls her own character witness to testify that Martha is an honest person.
C. Only after Martha testifies in her own defense OR calls her own character witness to testify that Martha is an honest person.
D. Never.
C. Only after Martha testifies in her own defense OR calls her own character witness to testify that Martha is an honest person.
Correct. The prosecutor’s character witness can be used to attack Martha’s credibility, or to rebut Martha’s character witness. Thus, either Martha testifying or calling a character witness will open the door to allowing the prosecutor’s character witness to testify.
What is FRE 402?
FRE 402. General Admissiblity of Relevant Evidence: "Can Fred Really Shoot?"
Relenat evidence is admissible unless any of the following provides otherwise:
- Constitution of the U.S.
- Federal Statutes
- Rules of Evidence
- Supreme Court Rulings
What are the "Probative Value" Factors for FRE 403?
- How important is the evidence to resolving the disputed questions in the case?
- Is there alternative eivence in the case that proves the proposition in question in a less prejudicial or distracting manner?
- The probative value of the evidence is diminished by the availability of other evidence of the same point
What is FRE 405?
FRE 405. Methods of Proving Character
(a) By Reputaiton or Opinion. When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the from of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific insttances of the person's conduct.
(b) By specific instances of conduct. When a person's character or character trait is an essential element of a charge, claim or defense, the character or trait may also be proved by relevant specific instances of the person's conduct.
What is FRE 408?
FRE 408: Settlements & Offers to Compromise Premise
Settlement offers are relevant, sometimes highly probative, but also prejudicial...
People settle to avoid legal fees, bad publicity, or the sheer nuisance of litigation.. not necessarily because they did anything wrong
In a homicide prosecution, the government offers a graphic, full-color autopsy photograph showing the internal organs of the victim. Defense counsel offers a formal, binding stipulation conceding the exact anatomical cause and manner of death, and objects under FRE 403 that the photograph's gruesome nature creates unfair prejudice that substantially outweighs its probative value. The trial court admits the photograph. How does the availability of an alternative stipulation generally factor into a proper FRE 403 balancing analysis?
A. The offer of a stipulation completely strips the opposing party's proffered visual evidence of any probative value as a matter of absolute law.
B. The trial court must weigh the actual incremental probative value of the photographic evidence against the risk of unfair prejudice, taking into account that a formal stipulation diminishes the necessity for graphic visual confirmation.
C. A trial court is legally mandated to exclude any graphic physical exhibit if the defendant offers any concession, regardless of the severity of the crime or context.
D. The existence of a stipulation is completely irrelevant to a Rule 403 assessment because the prosecution holds the exclusive right to choose how to prove each element of the crime.
Three (3) Main Categories of Mercy Rule
1. Defendant's Own Pertinent Trait
- Defendant offers own pertinent trait
- Prosecutor rebuts Defendant's pertinent trait
2. Victim's Pertinent Trait
- Defendant offers evidence of Victim's pertinent trait
- Prosecutor rebuts it and
- Prosecutor offers evidence of Defendant's same trait
3. Homicide Cases
- Defendant offers evidence that Victim was first aggressor
- Prosecutor offers evidence of victim's trait of peacefulness
FRE 408(a)(1)
Neither party may present evidence that someone offered, promised, gave, accepted, or agreed to accept something valuable to settle a disputed claim
This covers both sides of the negotiation (the person making the payment/offer & the person accepting/requesting payment or offer)
During a dispute in a bar, Charlie pulled out a knife and stabbed Harry in the chest. Harry died instantly. Charlie admits that he stabbed Harry in the chest, but he pleads self-defense, arguing that Harry swung at his face with a broken beer bottle first, and that he reasonably believed that he needed to use deadly force to protect himself. The prosecutor has a character witness who will say that Charlie has a reputation in the bar for being a very violent man. In his defense, Charlie wishes to testify that a few weeks before the incident, a friend of his had told him that Harry had stabbed two other people in the neck with a broken beer bottle in bar fights.
How should the judge rule on the prosecutor’s character witness and on Charlie’s testimony?
A. Allow Charlie to testify about Harry’s previous stabbing of two other people, but give a limiting instruction explaining that the jury should only use the testimony as evidence about Charlie’s state of mind at the time of the stabbing, not as evidence of Harry’s propensity for violence. The court should preclude the prosecutor from admitting evidence about Charlie’s reputation for violence, either in the prosecutor’s case-in-chief or in its rebuttal
B. Allow Charlie to testify about Harry’s previous stabbing of two other people, but give a limiting instruction explaining that the jury should only use the testimony as evidence about Charlie’s state of mind at the time of the stabbing, not as evidence of Harry’s propensity for violence. After Charlie testifies as to the previous stabbings, the court should then allow the prosecutor in rebuttal to admit evidence about Charlie’s reputation for violence.
C. Allow Charlie to testify about Harry’s previous stabbing of two other people, and allow the jury to consider the evidence for any relevant purpose. The court should preclude the prosecutor from admitting evidence about Charlie’s reputation for violence in its case-in-chief and in rebuttal.
D. Allow Charlie to testify about Harry’s previous stabbing of two other people, and allow the jury to consider the evidence for any relevant purpose. After Charlie testifies as to the previous stabbings, the court should then allow the prosecutor in rebuttal to admit evidence about Charlie’s reputation for violence.
A. Allow Charlie to testify about Harry’s previous stabbing of two other people, but give a limiting instruction explaining that the jury should only use the testimony as evidence about Charlie’s state of mind at the time of the stabbing, not as evidence of Harry’s propensity for violence. The court should preclude the prosecutor from admitting evidence about Charlie’s reputation for violence, either in the prosecutor’s case-in-chief or in its rebuttal.
Correct. Charlie’s evidence about Harry’s previous stabbings would be inadmissible to prove Harry’s propensity for violence, because under Rule 405, propensity can only be proven by reputation or opinion evidence, not specific act evidence. However, because Charlie knew about these stabbings, it is relevant to prove that he acted with a reasonable belief that deadly force was necessary, and so it admissible for that non-propensity purpose. Because Charlie is not offering this as propensity evidence, he is not “opening the door” to prosecution propensity evidence, and the prosecutor cannot admit evidence of Charlie’s propensity for violence.
Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a wintess's bias or prejudice or proving agency, ownership, or control.
Stan is charged with felony domestic violence after he allegedly struck his girlfriend in the chest with a baseball bat. At trial, the prosecutor will seek to offer evidence that six months earlier, Stan had beaten his former girlfriend with his fists so severely that she went to the hospital for two days. Stan is pleading self-defense, and at trial he will seek to admit evidence that three years earlier, his girlfriend got into a dispute with a store manager while she was shopping and she pushed the manager into a glass table, causing multiple lacerations and requiring the manager to get over twenty stitches. There is no evidence that Stan knew about the incident with the store manager at the time he struck his girlfriend with the baseball bat.
How should the judge rule on these proposed pieces of evidence?
A. Both pieces of evidence are admissible regardless of the order in which they are offered.
B. The evidence that Stan’s girlfriend pushed the manager into a glass table three years ago is admissible, but the evidence that Stan beat his former girlfriend six months earlier is not admissible.
C. The evidence that Stan’s girlfriend pushed the manager into a glass table three years ago is admissible, and after that evidence is admitted, the evidence that Stan beat his former girlfriend six months earlier is admissible
D. Both pieces of evidence are inadmissible regardless of the order in which they are offered.
D. Both pieces of evidence are inadmissible regardless of the order in which they are offered.
Correct. Although Rule 404(a)(2) allows the criminal defendant to go first in offering propensity evidence of the victim, and then allows the prosecutor to respond with evidence of the defendant’s propensity, Rule 405 states that when character evidence is offered to prove propensity (as here where Stan is proving that his girlfriend has a propensity to be violent, and therefore is more likely to have been acting violently on this occasion), character evidence can only be proven on direct with reputation or opinion evidence, not with specific instances of conduct. Stan could try to argue that his girlfriend’s violent action towards the store manager is admissible to support his self-defense claim, to show he had reasonable fear of her when he hit her with the bat, but since he had no knowledge of his girlfriend’s violent action at the time he struck her, this evidence is irrelevant to his state of mind at the time of the alleged crime.